Communications from Brett Sokolow to the Office for Civil Rights Reveal Strong Support for 2011 Dear Colleague Letter
Source: https://www.documentcloud.org/documents/23933046-17-02732-f
Below are two messages from Brett Sokolow to the Department of Education in 2011 and 2012 regarding the DOE’s 2011 Dear Colleague Letter (DCL). In these messages, Sokolow repeatedly expresses his support for the controversial policy:
September 6, 2011:
- “Our efforts were met with great skepticism until the DCL, the issuance of which now has us looking like prophets.”
- “We are accomplishing some amazing things as the result of the momentum created by the DCL.”
February 7, 2012:
- “the DCL signals the OCR’s strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault. Overall, the DCL addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures.”
- “The DCL offers uniformity and clarity on many important issues related to Title IX, and promises to improve student access to equal educational opportunities. To the extent that the recently proposed Campus SaVE Act seeks to codify certain provisions of the DCL, such as mandated use of the preponderance standard, we are supportive. We agree with the aims of gender equity in education under Title IX. Towards that end, we are supportive of the powerful message expressed in the DCL and the ideas expressed in this statement.”
See entire communications, below:
Pages 35-36
From: Brett Sokolow
<brett@ncherm.org>
To: Ali, Russlynn
Sent: Tue Sep 06, 2011
Subject: Title IX Keynote Invitation
Dear Asst. Secretary Ali,
I hope you are doing well. I have a number of items I want to raise, and I was hoping we might find an opportunity to do it in person. Please let me know if my partners and I can meet with you at a time of your convenience. On a personal note, you may or may not know of our work, but we have worked diligently for the last fourteen years to advance the cause of Title IX compliance on campus sexual violence with student affairs administrators. Our efforts were met with great skepticism until the DCL, the issuance of which now has us looking like prophets. That’s credit beyond what we deserve, but our advocacy of Title IX compliance, cases and complaints has been substantial and now carries an authority we could never have dreamed it would.
Because of that, it seems like FIRE, the False Rape Society, and the Mens’ Rights folks have us both in their sights these days. I’m happy to be taking some of the pressure off of you the last few weeks, though I expect that’ll be short-lived. I thought your comments this week to the Christian Science Monitor were very helpful to many college administrators who are left wondering whether the FIRE and AAUP attacks on the DCL will carry any weight. They need to hear your pushback. Talk in the field is that Harvard and Princeton are publicly stating that they intend to contest the imposition of the preponderance standard, and their codes of conduct are still publishing higher standards as of the start of this semester, post-DCL and with investigations ongoing. Resolving those complaints should bring about some greater finality, but it is fascinating to watch so many campuses making fundamental changes all at once. Historic, really.
If you are looking for a vehicle to carry the message further, we are hosting a campus sexual misconduct web stream on Sept. 12th. There will be hundreds of campus conduct officers participating. If we can share a written, live or recorded word from you or OCR, we’re happy to make space for you.
On another front, I have put your name forward to both ACPA and ASCA, two national higher education associations that have deep interest in Title IX, and I expect they have been in touch to invite you to their conferences. I hope you can attend or send an OCR representative.
Finally, you may be aware that we launched ATIXA in mid-August, the Association of Title IX Administrators (www.atixa.org). We have 225 members in less than a month, which is very exciting. We are accomplishing some amazing things as the result of the momentum created by the DCL. We are planning our first annual conference in 2012 to coincide exactly with the 40th Anniversary of Title IX. We have a substantial event planned for June, with a commemoration reception on the anniversary. Please consider this my formal request to have you preside over this reception and/or provide a keynote address at the conference in Chicago. We have a decent budget to make this event a centerpiece of national Title IX anniversary events, and hope OCR will tie some of its efforts to ATIXA’s, whether it be by personal appearance, content sessions at the conference, a platform to issue new Guidance, etc.
You may also know that I am trying to include OCR representatives in the Title IX Coordinator Training events we are doing around the country. Gayle Sakowski in the San Francisco office had to pull out of our early August event in St. Louis at the last minute, but we have upcoming events in Philadelphia, San Antonio and Atlanta. We’re trying to work with a few OCR offices, but I wonder if there is a way we could orchestrate a consistent OCR representative (as these events are not regional in attendance) to share a broader perspective on compliance and enforcement than we can?
Sorry to dump all of these inquiries on you at once, but hopefully they can serve to form a bridge of communication between us that is beneficial to advancing Title IX compliance in schools and colleges. Again, please let me know when we might be able to schedule a meeting in Washington or another location that is convenient for you.
Regards,
Brett A. Sokolow. Esq. Attorney-at-Law
Managing Partner, The National Center for Higher Education Risk Management (www.ncherm.org)
Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)
Executive Director, The Association of Title IX Administrators (www.atixa.org)
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Pages 38-41
From: Nancy Hogshead-Makar
Sent: Tuesday, February 07, 2012 6:52 PM
To: OCR; Ali, Russlynn
Subject: Support for the April DCL on Sexual Harassment and Violence under Title IX
Dear Assistant Secretary Ali,
Please find the attached letter, signed by 47 organizations, in support of the April 4th, 2011 “Dear Colleague Letter” on sexual harassment and violence under Title IX.
Warm regards, Nancy Hogshead-Makar
Senior Director of Advocacy, Women’s Sports Foundation
8787 Baypine Road
Jacksonville, Florida 32256
904 – 680 – 7784 w
904 – 307 -4293 c
904 – 680 – 7771 f
@Hogshead3au
NhogsheadgWomensSportsFoundation.org
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[Text of Letter – entire letter with footnotes is available at https://www.womenssportsfoundation.org/wp-content/uploads/2016/09/organizational-signon-for-dcl-re-sexual-violence-2012-final-sign-on-3.pdf ]
February 7, 2012
[Letterheads of the Women’s Sports Foundation and ATIXA: Association of Title IX Administrators]
Russlynn Ali
Assistant Secretary for Civil Rights
Office for Civil Rights United States
Department of Education
Lyndon Baines Johnson Department of Education Building
400 Maryland Avenue, SW Washington, DC 20202-1100
Sent by E-mail, U.S. Mail and Facsimile (202-453-6012)
Re: WE SUPPORT THE TITLE IX DEAR COLLEAGUE LETTER ON CAMPUS SEXUAL VIOLENCE
Dear Assistant Secretary Ali:
On April 4th, 2011, the US Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter,” (DCL) which explained schools’ responsibilities for addressing campus sexual violence under Title IX. 1 While the letter does not amend Title IX or depart from previously issued regulatory guidelines, it provides depth and explanatory content on compliance standards. Announced jointly by Vice President Joe Biden and Secretary of Education Arne Duncan, the DCL signals the OCR’s strong commitment to increased enforcement of Title IX as a prohibition against discrimination based on sex, including sexual harassment and sexual assault. Overall, the DCL addresses needed improvements in the promptness of administrative responses and resolutions of complaints, and enhanced equity in policies, investigations and procedures. The DCL also notes in particular that complaints against athletes must be subjected to the same rigorous standard as when the accused individual is a non-athlete.
Certain provisions in the DCL have been the subject of public controversy. This statement is intended as a response to that controversy and as a declaration of support for the DCL as a whole.
The two main provisions of the DCL that have generated the most debate are:
- A provision recognizing that schools must apply a preponderance of evidence standard of proof when assessing the merits of a complaint of sex-based discrimination, harassment and/or violence;
- A provision requiring equitable treatment of victims and accused students.
Each of these will be addressed in turn and considered through the lens of Title IX’s mandate requiring prompt, equitable and effective redress and remedies.
THE PREPONDERANCE STANDARD
Proof by a “preponderance of the evidence” means the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” Contrary to a few highly publicized claims, the DCL’s requirement of a preponderance of evidence standard is neither new nor controversial. Indeed, according to Russlynn Ali, Assistant Secretary for Civil Rights at the Department of Education, approximately 80% of colleges and universities were already using the standard prior to the issuance of the DCL. This reflects, in part, the OCR’s consistent message to school over many years and administrations that they must apply a preponderance of evidence standard. Prior to the issuance of the DCL, a minority of schools applied a “clear and convincing” or “clear and persuasive” evidence standard. This much higher level of proof had already been rejected by the OCR long before publication of the DCL.
The preponderance standard is the only equitable choice under Title IX as it avoids the presumption, inherent in a higher standard of proof, that the word of a victim is less weighty than the word of an accused individual’s denial. It also enables school officials to render more decisive findings with greater confidence, given that a determination that one individual is more credible than another will support a finding. This is important given widespread criticism of school policies that enable decision-makers to claim they “believed” the victim, thus offered her counseling services, etc., but did not believe her enough to justify a finding against the assailant.
While Title IX’s equity mandate does not require that similar violations receive the same punishment, it does require that discrimination based on sex be subjected to the same policies and procedures as other forms of discrimination. As institutions routinely apply a preponderance standard to allegations of harassment based on race, ethnicity, disability, etc., it would be inequitable in the extreme not to apply the same standard to matters involving discrimination based on sex.
Because the preponderance standard allows for high confidence in decision-making, it better enables schools to take effective steps to prevent the future recurrence of discriminatory behavior, and to repair harm done to the school community.
Finally, a preponderance standard is appropriate because it is the applicable standard of proof in civil litigation when issues of sexual harassment and assault are redressed. If civil courts must apply a preponderance of evidence standard when holding schools and/or individuals accountable for negligence and intentional tort claims and civil rights violations, then schools should be obligated and empowered to protect their communities under the same standard. To conclude otherwise would ironically render victims more vulnerable to violence and harassment on college campuses than in the relatively less regulated “real” world simply because a lower standard will be less effective in deterring and vetting out harmful behavior within the community. Furthermore, with the same standard in place for school-based proceedings and civil justice matters, students may be less likely to file lawsuits because they will no longer perceive the civil justice system as affording a more favorable venue for legal redress.
THE EQUITABLE TREATMENT OF VICTIMS AND ACCUSED STUDENTS
Fair treatment of victims and accused students is consistent with the explicit mandate that schools adopt policies providing for “equitable” redress. The DCL is clear that the rights, benefits, privileges or opportunities typically extended to accused individuals should also be extended to victims. For example, if an accused individual is provided with a right to an advocate, the same benefit should be made available to the victim. Equity also requires that relevant investigative materials be provided by the school to the accused individual and to the victim, such that they have equal opportunities to prepare and respond. The victim should neither be burdened with the responsibility of serving as a kind of “prosecutor” during the process, nor be relegated to the role of mere witness with no individual rights at stake. Title IX obligates the school, not the victim, to take all responsibility for the remediation of harm by providing for the prompt, equitable and effective redress of complaints.
A minority of schools have adopted policies and procedures that mimic criminal justice proceedings. These school procedures afford greater rights to the accused student, with few if any substantive or enforceable rights for victims. Applying criminal justice rules to school-based proceedings is not appropriate because schools are not the government and are not vested with the power to deprive an individual of a liberty interest akin to the nature of liberty at stake in criminal courts. Moreover, unlike the criminal justice system, the primary purpose of schools under Title IX is to ensure equal access to education, not to deter, punish and provide rehabilitation for accused and convicted criminals.
This does not mean schools should be unfair to accused students or that the interests at stake for accused students are not important. Indeed, the U.S. Supreme Court has held that public schools must provide some degree of due process to students prior to the imposition of punishment that rises to a level of suspension or dismissal. The Court has cautioned, however, that the student’s interest is much less weighty than that which is at stake for criminal defendants. Thus, far less “process” is required in school-based proceedings compared to the protections of due process afforded the accused in criminal justice matters.
At the same time, schools must act to protect students from discrimination, harassment, criminal victimization and other types of harm. In certain circumstances, schools are even obligated to take action prior to affording an accused individual notice and an opportunity to be heard, as when a “student’s presence endangers persons or … threatens disruption of the academic process…”
Equity does not mean applying exactly the same rules to victims as accused students. For example, it is inappropriate for schools automatically to issue mutual “no-contact” orders between victims and offenders as this restrains a victim’s freedom of movement and access to campus facilities without justification. Likewise, a victim should not be made to adjust her living conditions and/or be ordered to stay away from the offender on the grounds that requiring the accused individual to adjust his circumstances will violate his due process rights. The DCL makes clear that imposing any such burdens on a victim is inequitable and may constitute new harm under Title IX because the victim may endure additional suffering that interferes with her ability to participate in educational programs.
Finally, equity requires schools to consider allegations that an accused offender has committed multiple similar offenses. In criminal proceedings, this so-called “pattern evidence” can be excluded because judges are duty bound to apply criminal Constitutional rights that are not applicable in school-based proceedings. The special nature of a school community renders “pattern evidence” far more relevant because schools can be held liable to victims if they are “deliberately indifferent” to known risks of harm on campus, or fail to meet the duty of reasonable care for foreseeable harm. Likewise, consideration of “pattern evidence” is relevant to a proper assessment of whether class-based harm has occurred. This is an especially important factor in sexual assault cases because 90% of campus assaults are committed by repeat offenders. Indeed, failure to consider such evidence could inhibit or prevent equitable consideration of specific cases and interfere with a school’s duty to redress discrimination directed at protected classes on campus.
Other Issues
DOES THE DCL SATISFY THE ADMINISTRATIVE PROCEDURES ACT?
A question was raised as to whether the DCL violates the Administrative Procedures Act (APA), which requires government agencies to propose new regulations before implementing them, and provide for a period of public commentary. This objection is inapt as the DCL is not a “new regulation” and the OCR has always had authority to enforce Title IX. The DCL is not a regulatory scheme, but rather, serves as a clear statement of the OCR’s established positions on issues of promptness, equity, effective redress, risk management and legal consistency.
WHAT DOES “PROMPTNESS” MEAN?
While there is no fixed period of time within which complaints must be finally resolved, the DCL is clear that “promptness” is not satisfied if a school delays conducting an investigation and/or holds off convening a hearing until the criminal justice system has run its course. In fact, a school will be found to have violated Title IX’s promptness mandate if it declines to act because it is awaiting either the completion of a criminal investigation, prosecutorial decision as to whether charges will be filed and/or a final judgment by judge or jury. The DCL requires promptness as to the initial investigation and hearing process, as well as to post-decision appeals, rehearings and requests for reconsideration. In short, promptness means prompt as to the final resolution, including all appeals and post-decision “motions,” and the DCL indicates that a school should reach its full and final resolution within a 60-day timeframe.
HOW DOES THE DCL APPLY TO ATHLETICS SPECIFICALLY?
The DCL requires that athletes accused of sexual violence be subject to the school’s regular Title IX disciplinary process, without preferential treatment, softer sanctions or tracking of misconduct and disciplinary action solely through the athletics department, as is the policy on some campuses. In addition, the DCL singles out athletes and athletics departments as audiences worth targeting for preventive education programs, and recommends that schools develop specific sexual violence materials within student-athlete handbooks. Such material should include the schools’ policies, rules, and resources for students, faculty, coaches, and administrators. The materials also should include resources for student-victims looking for help, including specific information about their rights and the responsibilities of teammates and employees of athletics departments regarding reporting and other obligations when sexual assaults are reported or reasonably known.
THE CAMPUS SaVE ACT
We believe the April 4th, 2011 Dear Colleague Letter advances the inherent societal good that gender equity represents. The DCL offers uniformity and clarity on many important issues related to Title IX, and promises to improve student access to equal educational opportunities. To the extent that the recently proposed Campus SaVE Act seeks to codify certain provisions of the DCL, such as mandated use of the preponderance standard, we are supportive. We agree with the aims of gender equity in education under Title IX. Towards that end, we are supportive of the powerful message expressed in the DCL and the ideas expressed in this statement.
Signed,
Brett Sokolow, Esq.
Executive Director, ATIXA
The Assoc. of Title IX
Administrators www.atixa.org
[And 46 other organizations]